"They can't challenge our lack of a law."- Ray Lesniak on how the sports leagues could counter his move to repeal laws banning sports betting.

It’s an old trick but it might work.

The trick in question is called "nullification" and it dates to 1798 (see a good explanation of it here by Tom Woods and watch the video below.). The Constitution was just a few years old and the founders debated just how it was to be enforced. Both James Madison and Thomas Jefferson didn’t trust the federal courts to curb federal power. They argued that state officials could decide for themselves which federal laws were constitutional.

Nullification is usually seen as a right-wing tactic, but its most avid advocates these days tend to be on the more liberal side of the spectrum. The most prominent are the Coloradans who voted to legalize marijuana even though there’s a federal ban on it.

And now a liberal from New Jersey has another take on nullification. State Sen. Raymond Lesniak has come up with an innovative approach that could let New Jersey circumvent a 1992 federal law that restricts sports betting to the states that already had it back then.

State Sen. Ray Lesniak: Making an end run around the NFL and the other sports leagues.Noah K. Murray/The Star-Ledger

The Union County Democrat said he got the idea from the lawyers for the Monmouth Park racetrack, which could have sports betting by this fall’s football season if all goes according to plan.

"I didn’t think it up, but I will take credit for seeing it and realizing this is an opportunity," Lesniak told me.

The opportunity lies in a loophole in the Professional and Amateur Sports Protection Act, "PASPA" for short. New Jersey first tried to get around PASPA in 2011 with a referendum authorizing sports betting. But the sports leagues went to court and won an injunction banning the state from passing any law licensing sports-betting operations.

Case closed, right? Not exactly. Maybe New Jersey couldn’t pass a new law. But we could repeal an old law. Lesniak’s bill, which sailed through both houses, repeals any statutes that prohibit sports betting in casinos and racetracks.

The leagues would almost certainly go back to court if Gov. Chris Christie signs the bill, said Lesniak. But here’s the clever part of his approach: Anyone can sue to challenge a law. But "they can’t challenge our lack of a law," said Lesniak.

The court record backs him up on that. To win their case, the leagues had to argue that the 1992 law does not violate the "anti-commandeering" aspect of the 10th Amendment. That prohibits the federal government from telling states what laws they have to pass.

"Nothing in the unambiguous text of PASPA requires states to keep prohibitions against sports gambling on their books," the leagues conceded in one of their briefs.

If the state repeals that prohibition, the feds will then have to decide whether they want to use federal law to shut down sports betting. But if the Obama administration is not going to enforce federal marijuana laws in Colorado, then it shouldn’t go after sports betting in New Jersey, Lesniak said.

Chris Christie: Will this fan of federal power sign a bill that would reduce it?Patti Sapone/The Star-Ledger

"It would be a reach and a stretch for the Justice Department to do that with New Jersey on sports betting when they’re not doing it against Colorado with marijuana," he said.

It certainly looks like a stretch. The law the feds would most likely use is the federal Wire Act, which bans "the transmission in interstate or foreign commerce of bets or wagers." But the betting wouldn’t be done electronically. It would be done in person at the racetracks or casinos.

That’s not interstate commerce — at least not unless you’re a liberal. Over the years, liberals have used the Interstate Commerce Clause of the Constitution to argue that virtually every activity in America involves interstate commerce.

Conservatives disagree, particularly Supreme Court Justice Clarence Thomas. When advocates of medicinal marijuana argued that the feds couldn’t use the Commerce Clause to shut down medical-pot operations, Thomas was their strongest supporter. The government won, but Thomas’ dissent was an open invitation to nullification.

"If the majority is to be taken seriously, the federal government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 states," Thomas wrote.

Christie hasn’t said if he’ll sign the bill. Most conservatives support the states against the federal government in such squabbles. But our governor is an outspoken opponent of the Colorado experiment (see video below). The former U.S. attorney makes no secret of his worshipful attitude toward — and lust for — federal power.